Parker v. Billoups

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/03/17 GRANTING 2 Motion to Proceed IFP and DISMISSING CASE with 30 days LEAVE TO AMEND. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIKA PARKER, 12 Plaintiff, 13 14 No. 2:16-cv-2008-KJM-EFB PS v. ORDER ANTWAUN BILLOUPS, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint fails to state a claim and must be dismissed. 25 ///// 26 ///// 27 28 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 14 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 15 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 16 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 17 requires a complaint to include “a short and plain statement of the claim showing that the pleader 18 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 19 upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 21 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 22 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 23 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 24 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 25 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 26 authorized by a federal statute that both regulates a specific subject matter and confers federal 27 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 28 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 2 1 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 3 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 4 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 5 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 6 The complaint concerns the troubled and failed romantic relationship between plaintiff 7 and the defendant. Plaintiff, who is now 28 years old, alleges that the defendant first began 8 courting her when she was 21. ECF No. 1 at 7. After the two had established a romantic 9 relationship, plaintiff learned that defendant was married and also had a different girlfriend. Id. at 10 8. She also claims that early in their relationship defendant “had forced intimacy with” plaintiff. 11 Id. The parties’ relationship continued for several years, but eventually defendant told plaintiff 12 that “he is going to get married, has a girlfriend, and wants nothing to do with [plaintiff].” Id. at 13 11. Plaintiff alleges that she “doesn’t understand how to proceed in such a relationship and now 14 it has landed [defendant] in court.” Id. at 9-10. She contends that defendant took advantage of 15 her and that she “now wishes and requires to be compensated for her pain, suffering, and emotion 16 distress.” Id. at 11. 17 It does not appear from plaintiff’s complaint that this court has subject matter jurisdiction 18 over plaintiff’s claim(s). Plaintiff contends that this court has diversity jurisdiction pursuant to 19 28 U.S.C. § 1332. Id. at 4. However, the complaint establishes that both plaintiff and defendant 20 are citizens of California, and thus diversity of citizenship is lacking. Id. at 3. Furthermore, the 21 complaint does not allege any specific claims for relief, and it is not clear how the facts in the 22 complaint give rise to a federal claim. Accordingly, the complaint must be dismissed for lack of 23 jurisdiction. 24 Plaintiff will be granted leave to file an amended complaint, if she can allege a basis for 25 this court’s jurisdiction, as well as a cognizable legal theory against a proper defendant and with 26 sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126- 27 27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend 28 to correct any deficiency in their complaints). Should plaintiff choose to file an amended 3 1 complaint, the amended complaint shall clearly set forth the claims and allegations against each 2 defendant. Any amended complaint must cure the deficiencies identified above and also adhere 3 to the following requirements. It must also contain a caption including the names of all 4 defendants. Fed. R. Civ. P. 10(a). 5 Any amended complaint must be written or typed so that it so that it is complete in itself 6 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 7 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 8 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 9 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 10 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 11 1967)). 12 Finally, plaintiff is cautioned that failure to comply with the Federal Rules of Civil 13 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 14 See E.D. Cal. L.R. 110. 15 Accordingly, it is hereby ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 17 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 18 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 19 complaint. The amended complaint must bear the docket number assigned to this case and must 20 be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 21 accordance with this order will result in a recommendation this action be dismissed. 22 DATED: October 3, 2017. 23 24 25 26 27 28 4

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